Opinion Contributor

Where’s the oversight on NSA spying?

The failure of politicians to level with the public is disturbing, the author says. | AP Photo

By JULIAN SANCHEZ | 8/16/13 5:21 PM EDT

An explosive Washington Post exposé has revealed that the National Security Agency has trouble following its own lax rules: An internal audit caught 2,776 “compliance incidents” at NSA headquarters alone in a single year — with no hint of how many innocent American communications are improperly swept up in each “incident,” and no way of telling how many “incidents” are never caught at all.

Equally disturbing, however, is the systematic failure of America’s elected representatives to level with the public about the scale of the NSA’s illicit spying – and their failure to admit just how little meaningful oversight they conduct.

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The secret “compliance incident” memorandumpublished by the Post — the latest in a series of documents leaked by former NSA contractor Edward Snowden —is dated May 2012, just months before Congress voted to reauthorize sweeping programmatic surveillance authorities granted to the NSA under the FISA Amendments Act (FAA) of 2008.

Just one month later, Senate Intelligence Committee chair Dianne Feinstein (D-Calif.) heaped praise on the agency, writing in an official report, “Collectively, the assessments, reports, and other information obtained by the Committee demonstrate that the government implements the FAA surveillance authorities in a responsible manner with relatively few incidents of non-compliance.” The Post says Feinstein had not seen the audit memorandum at the time, and another fierce defender of NSA’s practices, House Democratic Leader Nancy Pelosi (D-Calif.), declared the report “extremely disturbing.”

Whatever incidents had occurred, Feinstein added, “have been the inadvertent result of human error or technical defect and have been promptly reported and remedied.” The audit memorandum paints a less rosy picture: It measured an 11 percent increase in compliance incidents during the first quarter of 2012 over the last quarter of the previous year. The Post also notes that the NSA determined it did not have to report one incident, involving accidental large-scale collection of data about calls from Washington, D.C., at all.

Nor do remedies always come especially “promptly” even when problems are reported. One program launched in 2011 continued for several months before a secret intelligence court ruled that it violated the Constitution.

Feinstein’s House counterpart, Mike Rogers (R-Mich.) delivered similar assurances during the debate over FAA reauthorization, acknowledging that Americans’ communications might be intercepted in “an odd case,” but insisting that this “has not happened frequently at all.” Unlike Feinstein, Rogers knew at the time that NSA headquarters was averaging 7.6 compliance incidents per day at the time, according to the Post’s reporting, though it’s not clear how many Americans were caught up in each incident. And that doesn’t even count Americans whose calls and e-mails get picked up because they’re communicating with a foreign “target,” who may or may not be involved in actual wrongdoing.

Rogers might have had a better idea of just how frequently Americans were being sucked into the NSA’s databases if Sen. Ron Wyden (D-Oreg.) had succeeded in passing an amendment requiring the agency to provide Congress with such an estimate. That amendment failed after a rushed debate, during which Sen. Saxby Chambliss (R-Ga.) derided it as an “unnecessary and pointless exercise” because the “collection system was designed to comply with FISA’s clear prohibition against the intentional collection of wholly domestic communications.”

President Barack Obama echoed those assurances just last week, telling talk show host Jay Leno: “There is no spying on Americans. We don’t have a domestic spying program.”

Yet that turns out to be true only on a very narrow definition of “spying on Americans.” As a report in the New York Times confirmed the very next day, the NSA believes it can “target” a foreigner, not only by tapping his phone calls and e-mails, but also by sifting through the e-mails of Americans for any mention of that “target.” In other words, there’s no “domestic spying program,” just a foreign spying program that happens to sift through an enormous number of Americans’ e-mails.

Both Obama and members of the intelligence committees appear to have decided it’s more important to reassure us than inform us, lest public qualms disrupt necessary surveillance programs. Yet the intelligence community also has a long track record of claiming programs are necessary that are later shown to have little value.

Americans were told that the original warrantless wiretapping program authorized by President George W. Bush had “been successful in detecting and preventing attacks inside the United States,” and even that it had “saved thousands of lives.” Years later, an internal investigation was unable to back up those dramatic claims, and found that intelligence officials “had difficulty citing specific instances where [the program] had directly contributed to counterterrorism successes.” Instead, it had wasted time and resources by generating false leads and spying on people unconnected to terrorism.

The information-sharing hubs known as “fusion centers,” massively funded for years by the Department of Homeland Security, were repeatedly touted by top officials as “one of the centerpieces of our counterterrorism strategy” and a “vital, proven tool.” Once again, it was years later before a bipartisan Senate report found that the centers had squandered millions without ever producing a single shred of useful terror-related intelligence.

In each case, officials who believed they had special insight into the value of secret intelligence programs decided we needed to be shielded, for our own good, from any messy facts that might call those programs into question. Perhaps the real value of these leaks, then, is not just bringing those facts to light — but making clear how thoroughly the intelligence community’s appointed watchdogs have become its most devoted lap dogs.